McCarthy v. Paris
| Decision Date | 27 April 1928 |
| Docket Number | 4544 |
| Parties | JOE MCCARTHY, Administrator of the Estate of TIM MCCARTHY, Deceased, Respondent, v. MARGARET N. PARIS, Appellant |
| Court | Idaho Supreme Court |
HUSBAND AND WIFE - COMMUNITY DEBT-LIABILITY OF SURVIVING WIFE - PAYMENT - WORK AND LABOR - CONTINUOUS CONTRACT-STATUTE OF LIMITATION-"GOING WAGE"-EVIDENCE.
1. Payment by surviving wife to employee, continuing in employment after husband's death, could not without her authority be applied in payment of community debt for services rendered before death of husband at his request.
2. Surviving wife held not personally liable for community debt for services rendered community at request of husband before his death.
3. Where a payment is made by one liable as an individual, and also as a trustee, the creditor can apply the payment only to the individual debt.
4. Action on account for services as a farm laborer held to have been to recover balance due on mutual, open and current account wherein there had been reciprocal demands between parties, within meaning of C. S., sec. 6615, providing that cause of action is deemed to have accrued from time of last item proved on account of either side; hence action brought within four years from last item was not barred, under section 6610.
5. Where employment is continuous for an indefinite term without time of payment being specified, C. S., sec. 6610, requiring actions to be brought within four years, does not begin to run until service ends.
6. In action on account for services as farm laborer, testimony as to value thereof by farmer employers of labor or farm laborers of vicinity who had observed plaintiff at work and were familiar with conditions held admissible.
APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Raymond L. Givens, Judge.
Action on account for services as farm laborer. Judgment for plaintiff. Modified and affirmed.
Modified and affirmed. Costs to respondent.
Barber & Barber, for Appellant.
Respondent could not apply a payment, made by appellant on her own account, to a debt of her husband. "While a creditor may apply a general payment on a just and valid demand, whether the correctness thereof be assented to by the debtor or not the debt must be an actual and existing one." (21 R. C L., p. 91; 30 Cyc. 1236; Stone v. Talbot, 4 Wis 442; 2 Am. & Eng. Ency. of Law, 2d ed., p. 422, and notes.)
A creditor, receiving a partial payment, cannot apply it in payment of items for which he cannot maintain an action. ( Armour Packing Co. v. Vinegar Bend Lbr. Co., 149 Ala. 205, 13 Ann. Cas. 951, and notes, p. 953, et seq., 42 So. 866; Kidder v. Norris, 18 N.H. 532; Bancroft v. Dumas, 21 Vt. 456; Royston v. May, 71 Ala. 400.)
And "after a payment has been lawfully applied upon a debt, either in pursuance of direction by the debtor, or applied by the creditor at his own election in the absence of such direction, such application of payment cannot be changed to another debt without the mutual consent of the creditor and debtor."
O. J. Paris' authority was limited to the work of the men about the ranch; he could not assume this liability on behalf of his principal.
Plaintiff in this action must prove the authority under which the agent acted. (21 R. C. L. 858.)
Persons dealing with an agent of obviously limited powers are bound to act accordingly. (American Ry. Exp. Co. v. Mohawk Dairy Co., 250 Mass. 1, 35 A. L. R. 14, 21, 144 N.E. 721.)
The agent's implied authority is limited to the purposes for which the agency was created and to the acts and duties ordinarily entrusted to such an agent. (31 Cyc. 1337; 21 R. C. L. 854; Naylor v. Bowman, 37 Idaho 514, 217 P. 263; 39 Idaho 764, 230 P. 347.)
Authority to settle claims against the principal, arising out of a contract between him and a third person, however, would not justify the agent in binding his principal to pay that third person's debts to others. (Mechem, sec. 1021; Cleveland Ry. Co. v. Shea, 174 Ind. 303, 91 N.E. 1081; 31 Cyc. 1388.)
And the declaration of an agent touching a matter not within the scope of his authority is not binding upon the principal. (21 R. C. L., p. 850; Atlantic Coast Line Co. v. Dawes, 100 S.C. 258, Ann. Cas. 1917A, 1272, 84 S.E. 830.)
"In the case, however, of a hiring of services without agreement as to term or amount of compensation, and in the absence of evidence of payments, it is declared that the law will not, under such circumstances, imply an agreement that compensation shall be postponed until the termination of the employment." (17 R. C. L., p. 797; Davis v. Gorton, 16 N.Y. 255, 69 Am. Dec. 694; McMullen v. Guest, 6 Tex. 275; In re Ward, 21 Ohio C. C. 753.)
A mutual account implies a course of dealing where each party furnishes credit to the other on the reliance that upon settlement, the accounts will be allowed so that one will reduce the balance due on the other. (Re Hiscock, 79 Mich. 536, 44 N.W. 947; Brock v. Wildey, 125 Ga. 82, 54 S.E. 195; Smith v. Hembree, 3 Ga.App. 510, 60 S.E. 126.)
An account is mutual only where there is indebtedness on both sides. (Leonard v. United States, 18 Ct. of Cl. 382.)
Reasonable value may not be proven by mere hearsay; nor opinions based upon mere hearsay given in evidence. (1 Jones (Horwitz), pp. 865, 866; 10 R. C. L., Evidence, sec. 132; McKelvey, Evidence, 3d ed., pp. 315, 316.)
And particularly, evidence as to a "going wage" is objectionable where based on mere hearsay.
Delana & Delana, for Respondent.
"A general objection to evidence is not sufficient for the purpose of review on appeal where the evidence is admissible as to one party but not as to another; but in such case the lower court must have been requested to limit the application of the evidence to the party against whom it was competent." (3 C. J. 823; Delger v. Jacobs, 19 Cal.App. 197, 125 P. 258, at 262; Keesling v. Doyle, 8 Ind.App. 43, 35 N.E. 126, at 127; Taylor v. Deverell, 43 Kan. 469, 23 P. 628, at 629; Cronfeldt v. Arrol, 50 Minn. 327, 36 Am. St. 648, 52 N.W. 857; Produce Exchange Trust Co. v. Bieberbach, 176 Mass. 577, 58 N.E. 162.)
The transfer of the property by Bud Paris to the defendant, Margaret N. Paris, without provision for the plaintiff's debt, owed by Bud Paris, was fraudulent and void. (C. S., sec. 5433.)
An heir is liable for the debt of his ancestor to the extent of the property received by him. (21 L. R. A. 89, note; 39 L. R. A., N. S., 689, note; Whelan v. Swain, 132 Cal. 389, 64 P. 560; McCarthy v. Mullen, 82 N.J.L. 379, 82 A. 51, 39 L. R. A., N. S., 688; Forman v. Stickney, 77 Ill. 576.)
The debtor has the primary right to direct the application of payments made. (30 Cyc., p. 1288.)
In the absence of such direction, the creditor has the right to apply the payment on any debt owed by the debtor. (30 Cyc., p. 1233.)
In the absence of any agreement, the payment should be applied to the oldest debt. (30 Cyc., p. 1243.)
Where the employment is continuous, and for an indefinite time, with no time of payment specified, the statute of limitations does not begin to run until the service ends. (Ah How v. Furth, 13 Wash. 550, 43 P. 639; Grisham v. Lee, 61 Kan. 533, 60 P. 312; Kansas P. Ry. Co. v. Roberson, 3 Colo. 142; Jackson v. Mull, 6 Wyo. 55, 42 P. 603; Carter v. Carter, 36 Mich. 207.)
Farmers living in the vicinity may testify as to the value of farm services, and that the same is not expert testimony, but opinions given from common observations and experience. (See North Texas Construction Co. v. Bostick (Tex.), 80 S.W. 109; Bogue v. Corwine, 80 Mo.App. 616, at 620; Cowdery v. McChesney, 124 Cal. 363, 57 P. 221; Hefferon v. Brown, 155 Ill. 322, 40 N.E. 583, at 584; Kestler v. Kern, 2 Ind.App. 488, 28 N.E. 726, at 732; Croft v. Chicago, R. L. & P. Ry. Co., 134 Iowa 411, 109 N.W. 723, at 726; Chamberlain on Evidence, sec. 2135; 17 Cyc. 126.)
Where there is a dispute as to the wages under a contract, evidence as to what is a reasonable wage or the customary going wages is admissible. (Edelen v. Herman, 162 Ky. 500, 172 S.W. 936, L. R. A. 1915C, 1208; Richardson v. McGoldrick, 43 Mich. 476, 5 N.W. 672; Pettet v. Johnston, 83 Wash. 663, 145 P. 985; Ellis v. Woodburn, 89 Cal. 129, 26 P. 963, L. R. A. 1915C, p. 113, note 9.)
In a suit on quantum meruit for the reasonable value of labor evidence of the usual or going wage is admissible. ( Allen v. Urdangen, 141 Iowa...
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...and sharecrop ventures also may give rise to mutual accounts. Jenkins v. Donaldson, 91 Idaho 711, 429 P.2d 841 (1967); McCarthy v. Paris, 46 Idaho 165, 267 P. 232 (1928).6 We note, however, that the fact an issue is not pled is not necessarily fatal to its being proved at trial, even over t......
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